Last week, the North Carolina Court of Appeals — always busy, even in the last days of August — issued a number of decisions, some of which are of interest to the authors of this blog. Let’s take a quick end-of-summer look.
In Barbour v. Pate, 10 CVS 1871 (August 20, 2013), the Court addressed the validity and scope of easements over property. We are interested with the Court’s analysis as applied to the scope of easements, by which the Court appears to favor that which is broad.
As to the scope of easements “implied by prior use”, the Court vacated the trial court’s ruling and explained that the scope of an easement “implied by prior use” is not limited in scope by the “historical use” but rather is controlled by the intention of the parties at the time of the land transfer creating the easement. The Court does not prevent the “historical use” from informing the intent, but it does require the trial court to go deeper than just the “historical use” of the easement to determine its scope.
As to easements “by necessity”, the Court also vacated the trial court’s ruling. The trial court limited the scope of the easement “by necessity” to the historical uses it could divine. The Court required the trial court to determine the “intention” behind the uses of the easement path, as well as a determination as to the full universe of uses that would allow the “convenient and comfortable enjoyment” of the dominant tract.
Appeals of Quasi-Judicial Decisions
In an interesting case involving challenges by homeowners to the physical expansion of an academic institution, the Court in Myers Park Homeowners Ass’n v. City of Charlotte, 12 CVS 7485 (August 20, 2013) made some pronouncements with regard to appeals of quasi-judicial decisions rendered by the City of Charlotte’s Zoning Board of Adjustment.
First, the Court reinforces the use of the legal standards of review applicable in appeals of quasi-judicial decisions: (1) de novo review over issues of law, and (2) “whole record” review where it is alleged the quasi-judicial decision is not supported by the evidence or was arbitrary and capricious. Interestingly, the Court appeared to consider the petitioners’ procedural due process claim (the City’s failure to notice the homeowners’ of the binding administrative determinations about roads and uses under the zoning ordinance, when rendered) to be without merit because the trial court properly applied de novo review and “a de novo review of the zoning ordinance by this Court will remedy the alleged due process violations.”
Second, the Court rejects petitioners’ motions pursuant to N.C.R.P. 52 and 59, by which petitioners demanded that the trial court render findings of fact and conclusions of law. The Court’s bases for rejecting these motions are that (1) these rules are inapplicable to a trial court in an appellate setting, and (2) the trial court, in reviewing a quasi-judicial decision pursuant to a writ of certiorari, is sitting as an appellate court. The Court reminds that this principle had been visited in the past as to N.C.R.P. 52 — citing Markham v. Swails, 29 N.C. App. 205 (1976) — but this appears to be new law as to N.C.R.P. 59.
Mike Thelen practices in Womble, Carlyle’s Real Estate Litigation and Land Use practice group. He regularly represents a wide variety of clients, from local governments to businesses, in land use and land development matters in both state and federal venues throughout North Carolina. Follow the North Carolina Land Use Litigator on Twitter at @nclanduselaw and “like” us on Facebook here.
Categories: Real Property Issues